Mobile, Alabama

The Hellhole of Tort Reform

Recently, I saw reference to a website called Judicial Hellholes which is maintained by the American Tort Reform Foundation (ATRF). So what is a “judicial hellhole”? According to ATRF: “Judicial Hellholes have been considered places where judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits.”

Parsing that definition, that group’s position appears to be that there is a problem with certain judges in certain places being unfair to defendants in civil law suits. Oddly, ATRF’s position implies that judges are a problem only in a civil law setting but not in a criminal context. Why judges can be bias-free in criminal matters, but not civil ones, is not explained. In any event, what are these judges doing that has raised the ire of ATRF? It accuses judges of “applying laws and court procedures” improperly, i.e. in a biased manner. What laws and procedures? ATRF doesn’t say, but it assures us that the application is improper and biased.

I thought a journey into some of the hellholes might be instructive. The #1 hellhole is Philadelphia, Pennsylvania. Why? Because of “excessive verdicts” and local Philadelphia judges “viewing the increase in lawsuits and out-of-town lawyers as a boost for the court’s revenues and the local restaurants and hotels.”

ATRF doesn’t explain how the judges are responsible for the verdicts – as that is the realm of the jury. As for the judges trying to draw out-of-town lawyers into Philly – if true, then ATRF should consider a restaurant boycott and encourage visiting counsel to pack a brown bag lunch – not tort reform.

At # 2 was “California, particularly Los Angeles and Humboldt Counties.” I guess ATRF thinks there are a lot of unfair judges in California because “Awards in Los Angeles are particularly generous.” What else are these unfair judges doing? They are allowing, to ATRF’s chagrin, the application of California law, passed by the legislature, which “permits private personal injury lawyers to bring enforcement actions on behalf of the state.” How dare they.

Once again ATRF, while claiming the “process” is not fair, are focused on the result. I guess a generous verdict is never warranted no matter how egregious the behavior. ATRF doesn’t offer the grounds for how California judges are supposed to ignore the right of a private attorney to bring an action on behalf of the state. I assume they just want California judges to ignore the law.

West Virginia comes in at #3 judicial hellhole. AFTA is disappointed that the state has failed to introduce reforms which would create a “right of appeal” for defendants. But AFTA also notes that they have concerns that the West Virginia Supreme Court will engage in “judicial nullification” (otherwise known as judicial review – which I guess is okay with ATRF as long as you are a California court being asked to attack a qui tam statute) and strike down legislation which sought to place an “upper limit on pain and suffering awards in lawsuits against doctors and health care providers.” I find it ironic that AFTA is disappointed it didn’t win the right to appeal to a body that it doesn’t trust to do the right thing in the first place.

To top off its report on how “judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits,” ATRF provides a “Rogues’ Gallery” – but not of the allegedly offending judges. The gallery is of “influential plaintiffs’ lawyers who have stretched ethics rules and criminal laws beyond their intended bounds – manufacturing lawsuits, lying to the courts, disregarding court orders and stealing client recoveries.” How the fact that one lawyer “was charged this year with tax evasion” and another was “caught on tape making unwelcome sexual advances to a client,” relates to ATRF’s claims that the Untied States is over-wrought with biased judges isn’t presented.

ATRF is blowing smoke from its hellhole. It offers a mélange of supposed injustices which contradict its own definition of the problem. If there truly are judges who are flouting the law just to float the Philadelphia restaurant economy, put them in your gallery, shout their names from the highest rooftop, and help “kick the bums out of office.” I’ll get in line to sign your petition. But I suspect that such isn’t the case in Philly (or California or West Virginia).

In my opinion, ATRF, founded in 1986 by the American Council of Engineering Companies, has one mission – to promote measures that will drive down verdicts against corporate defendants regardless of the circumstances, whether that means erecting strawmen or demonizing the bench and bar. In essence it is a mission to prop up a segment of the business world at the expense of justice. If one believes that organizations are capable of psychological projection, then it should come as no surprise that ATRF is seeking to ruin the court system for the sake of “local restaurants.”

In the final tally, ATRF’s role is attempt the rig the game for big business rent seekers and those who want to “stabilize” the cost/benefit analyses of the injured into their bottom line. ATRF is no friend of the judicial system, or average Americans who may find themselves plaintiffs or defendants.

2 Comments

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Nice post. The lack of substance behind tort deform is shocking at times–particularly as the “movement” gathers supporters from the very consumers and small businesses who are relinquishing their very American right to be on equal footing with any corporation.

The jury system was created to level the playing field. That’s what tort deform, at its basest level, wants desperately to undo.

Burns, Cunningham & Mackey, P.C.

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